Posted
by
michael
on Friday February 16, 2001 @03:34PM
from the expected,-but-sad dept.

Today the U.S. Court of Appeals handed down a decision in the Eldred vs. Reno case, which challenged the most recent extension of copyright terms on the grounds that it violated the Constitution in several areas - that it violated the First Amendment by overbroadly restricting speech; that it gave protection to non-original works (since it retroactively applied to old, already-published works); and that the constant extensions of copyright terms were not a "limited Time" as required by the Constitution. The Court rejected all of these arguments. However, one of the three judges in the case wrote an interesting dissent, which at least holds out the hope that in some future case, skilled litigators may be able to convince the judiciary that permanent copyright is an unwarranted extension of Congress' powers.

From the Open Law dbUnder the copyright regime existing before the Sonny Bono Act, works created by individuals, say J. D. Salinger or Elvis Presley, enjoyed protection for the life of their creators plus an additional 50 years. Works created by so-called "corporate authors," such as Disney and the New York Times, received protection for 75 years from the date of their creation.
The Sonny Bono Act adds 20 years to both terms of protection, giving individual authors protection for life plus 70 years and corporate authors protection for 95 years. Thus, a symphony created by a 5 year-old modern Mozart who lives to be 85 will not be available in the public domain for the first 150 years of its existence.
Eric Eldred and we at the Berkman Center think the Sonny Bono Act robs the American public of the rich and diverse public domain guaranteed by the Constitution.
"Me Ted"

The way copyright law is is that a person can restrict all other people from doing anything similar enough to what they have already done. This can be abused by the copyright holder or it can be used to just make sure proper credit is given. I think that copyright law in whole needs a re-write.

Where was Orrin Hatch on this one huh? Maybe he's spending too much time downloading stuff off of Napster before they get shut down.

I think the old 50 years after the death of the author was good enough. I wounder, would the retroactive provision in this apply to works that have expired copyrights? Could we see Project Gutenburg have to take down texts because of new copyrights?

Most law is full of holes, since you can't cover every single thing that creative, ingenious people will try to do. And if you have every single possible thing on the books (You can do this:...; You can't do this:...), where is liberty? You can only do what is explicitly permitted. So we typically take the approach that we can do whatever is not forbidden. And that includes lots of things that RIAA and lots of others don't like.

Notice how all the movement in the USA is toward restricting us more in some way? It seems like everybody with lawyers is trying to deploy the coercive power of the state to reduce someone else's liberty. Wasn't it somewhere on/. that there was an article about how remembering something would be a copyright violation? Because you're copying it into your memory? Oh yeah, the licensed chairs, I'd forgotten that. Oops, I remembered!

From the article writeup:...that permanent copyright is an unwarranted extension of Congress' powers.

Well, duh, we all know that. And so do the judges. The problem is, copyright hasn't been extended to be permanent yet!

Even if, for all intents and purposes, it is far too long, it's still not permanent! And this is the problem. I personally agree that the current span of copyright is far too long. However, my opinions mean nothing legally. Face it, if they decided that copyright lasted a billion million years or whatever, it's still "limited."

When I first read of this case, my reaction was "tell me when they lose" because none of their arguments really hold water in my not-so-legally-binding opinion. This cannot be fought in court. This battle must be fought with the legislature. Write your congress-critter. Write editorials to your paper. Get people informed!

Trying to get this law overturned in the courts is the wrong way to go about it. Don't bug the judges about this - bug Congress. They write the laws. Fixing what the problems in copyright has to go through Congress. They extended copyright, they have the power to reduce it. Make it an issue. But don't fight this in the courts - it's well within Congress's right to make these kind of laws. It's a delegated power. So take the issue where it belongs - to the law makers.

The government has offered no tenable theory as to how retrospective extension can promote the useful arts.

This is the entire Achilles' Heel of the indefinite-copyright advocates; the grant of copyright exists for a specific purpose, and may not be legitimately used for any other (including and especially to allow wealthy people to extract monopoly rents from the populace).

Intellectual property is a construct; in nature, the public domain rules all and any idea which becomes understood by the public becomes the property of all. The purpose of patent and copyright protection is to promote the publication of these ideas by allowing temporary monopoly use. Progress in the useful arts includes returning things to the public domain so that others can build upon them. One thing's for certain: letting one company have a monopoly on a mouse 70 years after "Steamboat Willie" was aired has no relationship to progress.--Knowledge is powerPower corruptsStudy hard

The division between physical copyright laws and intellectual copyright laws, is then a false dichotomy.

The difference is that physical property is inherently scarce, and intellectual property is not: Only one person can own a physical resource (land, car, pencil sharpener), thereby mkaing any other's use of it a necessary decrease in the value held by the original owner. Intellectual property just isn't scarce in this way. My creting and owning a copy of a digital work that you hold does _nothing_ to decrease the value you _actually_ hold; At most it decreases a _possible_ value in the form of a potential sale. These are _not_ the same kind of value.

I suspect I've been trolled, but... are you serious? Permanent copyright? Are you honestly telling me that in your idea of a perfect world, people would have to pay Shakespeare's descendants royalties to read a copy of "Romeo and Juliet"? Or that religious types would have to pay royalties to the church to read a bible?

Copyright was intended to foster innovation in science and the arts, by granting the artist control over his/her/their works for a limited time, after which, the works enter the public domain for all to enjoy. "Permanent copyright" would pretty much guarantee that innumerable works, both scientific and literary, would be lost to future generations.

If my physical property rights ran out and I was forced to give up my toothbrush, I would suddenly be unable to brush my teeth. If my copyright on my IP (say, The Muppet Show) ran out I would still be able to do everything I could before, EXCEPT use the law to eliminate all competition in the market for that specific piece of IP (eg, Other people could rebroadcast the Muppet Show whether they paid me or not!).

While I respectfully disagree with you I must point out that if you want to make copyright permanent you'll have to pass an amendment. With regards to copyright, the Constitution only gives Congress the power to "promote the Progress of Science and the useful Arts" and it only allows Congress to do that by "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

This is false, because the categorical response to speech has always been to have more speech, which copyright prevents. Nevertheless, the Supreme Court made copyrights categorically immune from First Amendment attacks in United Video, Inc. v. FCC. That's the precedent, and the DC panel has refused to undermine it.

Similarly, the "limited times" response by the Court is absurd:

Their idea is that the phrase

"limited Times" should be interpreted not literally but rather
as reaching only as far as is justified by the preambular
statement of purpose: If 50 years are enough to "promote
... Progress," then a grant of 70 years is unconstitutional.

The Court's response to this argument? A meager reference to precedent in Feist Publications, Inc. v. Rural Telephone Service Co., controlling because of the Feist's court's failure even to account for the clause.

The principle of stare decisis is an important one in angloamerican law, but it's hardly an absolute rule. If precedents fail to allow for the manifestly correct verdict, then they should be overturned. It's that simple.

I take small consolation in the fact that this is merely a three-judge panel of the DC Court of Appeals and not the complete bench.

That would be interesting.
So how do we compensate those who controlled the idea on which a character was based? I thought that is was why copyright was limitted. At some point the ideas are released back to the society which enabled the person to have such ideas.
Otherwise, perhaps people should have to pay to interact with others in our society.
Even with the time limits copyright now the actual people who created a culture/technology of the time would never benefit directly.

I am not yet convinced one way or the other over the underlying issue involved in this case and seemingly everything else today: intellectually property. Content producers have to make some sort of compensation for their activities. Honor systems have not yet worked - witness Stephen King's experiment last year. Maybe once we start seeing micropayment system in place and more ubiquitous such schemes may pay off. I guess what I am unsure of is whether something should necessarily belong to the public domain simply because we want it. The idea that "data wants to be free" is so often promulgated by those who want to exploit resources like Napster that its credibility is diminished. One the other hand, the advances achieved by the Open Source community speak volumes about the creative capacity of the collective spirit, individuals working together to create a whole that is more than the some of the parts. I love free stuff, who doesn't, but I don't know that such a love dictates that things be free simply b/c we want them to be. Obviously what this is about is whether copyright should be extended, so it is a different beast, in some regards. However, this dicussion, the fight over Open Source (at least on MS's part its a fight), and the debate over Napster et al are all symptoms of a bigger issue. The sad thing is the gulf separating the two sides is ever widening. This struggle between conservative and liberal, if you will, is going to have far reaching consequences, beyond this issue, into medicine, space research, family planning, and beyond. Why is it that at the begining of the 21st century, the forces of yesterday are prevailing in so many ways?

One of the things that justified copyright in my mind is that it was meant to equate physical ownership of something tangible to ownership of something intangible.

If you invent a machine, you patent it, exploit it, and either someone invents something better or they dont. On the other hand, you create a cartoon character (an expression of thought), exploit it, someone else should try to outmarket you. Just as the machine will be obselete in however long it takes, so would the cartoon character by becoming public domain.

The thing is though that it seems unfair (for lack of a better term) to me to say that Disney should give up Mickey Mouse. He's still their bread and butter and seeing things like Mickey Chinese Food and Mickey Rolling Papers don't serve public interests. On the other hand, no one should own Mozart. If I want to produce a recital I shouldn't have to pay a licensing fee. I guess my point is that copyright is awfully subjective but it serves some purpose.

I'd have to say on some levels I agree with you but if I had to decide against permanent copyrights I would

1. A 'billion million years' is effectively permanent, and would, I suggest be unconstitutional.

2. The dissenting judge has a point -- the Constitution grants the power to (A) "Promote the progress of science and useful arts", and (ONLY as a method of promoting science and useful arts) (B) to secure "for limited times to authors and inventors the exclusive right to their respective writings and discoveries." So, if Congress does (B) above in a manner inconsistant with (A) above, then it has acted unconstitutionally.

It's like I said: "I'm going to let you live in my house for the next year and I'll let you take responsibility for upkeep, by giving you access to my bank account." I come back a year later, and my house is in decent shape, but you've emptied my bank account and bought yourself a land rover. Under the majority's iterpretation, you'd say "Well, yeah, you gave me access to your bank account," but I gave you that access to take care of the house, not to buy yourself a car.

This sort of ruling is precisely why we need a defensible perimeter for out-of-copyright works, similar to the GPL. It is clear that property rights in words will become absolute and indefinite, to the detriment of the progress of art and science.

We can own a physical object forever, I do not see why we cannot own an idea, like a Disney film or character, forever too.

You can't own anything forever. Sooner or later, you'll die.

Ownership is not an intrinsic property of a physical object, its something humans associate with it. Communism didn't 'fail' on its own merits so much as it did because of inept and twisted leaders in Russia. And when the USSR fell, it took the rest of the "Communist world" with it. However, if you look at china today, their economy is doing fine, despite they're 'communist' nature, but this is beside the point.

Capitalist systems are more 'intuitive' to humans, and they do work better then communist systems. The idea of property is just that, an idea, and nothing more. Having it, and believing in it makes our society run more smoothly then not having it.

Where is the evidence that society can't function well without a tight copyright/patent system? As far as I can see there are two fundamental differences between physical property and intellectual 'property'

+Instances of intellectual property can't be taken, only copied.

If I have an audio recording, and someone makes a copy, I'll still have my copy, I haven't lost anything, yeh maybe I had to work for it and they didn't, but I'm not a selfish person, It doesn't bother me. And there's always the issue that that particular person might not ever have even heard of the product, much less purchased it. When I pirate a copy of Adobe Photoshop, It isn't costing Adobe any money, because I couldn't have afforded it. Either way, none of my money would have ended up in their pockets.

+Most intellectual property isn't really needed

I'm pretty sure that most of here wouldn't be adversely affected by a lack of new Hollywood blockbusters, or the latest crap custom made for the glowing box. We don't really have a problem, here, we aren't really going to have a huge problem if the production of intellectual property slows down, and warnings of economic down don't make sense if you figure that people would just spend their money elsewhere. Teens might spend more money on clothes, or cars, or computer hardware, whatever. The money is still going to be spent. It will just be spent elsewhere.

And lets not forget that a lot of intellectual property is created for fun. Maybe without the commercial intent, it wouldn't be as high quality, but then again, commercial interests often pander to the lowest common denominator, and create pure garbage just because it sells. Without the motivator to sell, perhaps the quality will go up as people produce things they want to produce. I'd imagine that things like music and writing, which don't require a huge overhead would be just as prevalent now as ever.

In a society whose most fundamental principal is the free exchange of ideas, the existence of any instituationalized restriction on that exchange is problematic. Copyrights clearly limit free speech and free expression by restricting who is allowed to say or write what, and who must be paid for it.

At the same time, however, copyrights can encourage free speech by allowing authors the exclusive right to derive income from their works for a limited time. The legitimate purpose of copyright in a free society is to provide just this kind of encouragement. Any extension of copyright beyond the term needed to encourage free expression begins to act in restraint of such expression.

You make the argument that ownership is itself an intellectual idea, and that intellectual property is no different from physical property. Do you believe somehow that owning a pair of shoes is the same as owning the story of Romeo and Juliet?

When I buy a pair of shoes, I own that one pair of shoes. I don't own the rights to charge money to everyone who makes a pair of shoes that look like my shoes.

Patents, and trademarks may give me the right to restrict who can make shoes that look like mine, but these concepts restrict free trade in the same way as copyrights restrict free speech. They have value in that they encourage innovation, but beyond that, if someone buys the materials and builds a pair of shoes exactly like mine, they should be permitted to keep all the fruits of their labor.

Similarly, if someone wishes to write a new story based on Romeo and Juliet, they should not have to track down any living heirs to Shakespeare and negotiate intellectual property rights. Shakespeare had no expectation that he would own the rights to his works beyond his lifetime, and probably expected to be copied within a few years, if not months, of producing his work. A long copyright period would not have encouraged him to write more or better works.

Similarly, do you think any film or music company woould refrain from making CD or motion picture simply because they'd lose the rights in 20 years instead of 75? They make most of the money in the first couple of years anyway, and additional time is just a nice bonus in the rare cases where a work has lasting value.

Next time with better arguments. Reading the court's ruling leads me to believe that the plaintiffs did a poor job of forming and presenting their arguments. They should have focused more on a couple of points that might have at least had a chance of making the court take a side and express an opinion on a real issue.

For example, I'd like to know how Congress thinks extending the copyright of an existing work encourages the creation of that work. I'd also like to know Congress' reasoning in determining that the extra 20 years would, in fact, "promote the progress of science and useful arts more than the previous term did." I think the government should have to explain itself, and this case did not ask the right questions to get useful answers from the government. If they try again in the future, I'd like to see them pursue these explanations.

I offered some suggestions [half-empty.org] recently on Half-Empty for realistic political goals for copyright reform. It's not going to be easy, though. There are some major corporate economic interests involved, and the whole reason copyright gets more and more out of balance is that they're so good at lobbying. The Bono act was passed without any debate on the floor -- legend has it that the CEO of Disney got a private meeting with Clinton, and explained what a disaster it would be if the 1923 Winnie the Pooh copyrights went public domain.

Many North American Natives had no concept of property the way Europeans did, nor do a few other tribes scattered across the globe. The idea of property itself had little formulation for the bulk of humanity's time on earth. What might be more appropriate to say is the Property is essential to Western Civilizaion. Or perhaps "the idea of self-identity is essential to our concept of society." Lots of thought was given to society and the role of property in the 18th and 19th centuries. Read Voltaire, Locke, Hobbes, Rousseaue, Montesquie for some of their ideas on this concept.

Some say that property is theft. Of course, this is a nonsense left wing Marxist viewpoint. However, it appears that some reactionaries are trying to apply this discredited idea to copyright law. I am afraid I have to dissent from this.
The notion of property is fundamental to any society. Property is in itself an intellectual idea, and as such does not just have remit over physical objects, but can be just as well applied to the world of ideas.

I still don't see how ideas can be property. So if idea A is someone else's property, and I think of it, is that a theft? A thought-crime?

I heartily agree that property is fundamental; it is fundamental to liberty. Notice how in collectivized societies, where property is shamed, people are routinely abused. In places where property is protected under law, people enjoy more liberty.

I would think that when someone says that something is to last for a limited time, it would be logical to conclude that by limited they would mean much less than the lifespan of an individual. If that time period was longer than the lifespan of an individual, then it is in effect an unlimited time period to those persons who live within that specific timeframe. That cannot be what they meant by "limited" when they wrote the constitution!

How can I trademark my project name? (At least this guy is trying to invent his own name, not take someone else's, although the precedent he cites was a case of flat-out infringement.)

Yay! Orrin Hatch wants to restrict music copyrights.

An interesting, if incoherent, piece about supercooling atoms with lasers.

Oh, no! Someone lost a domain name that infringed on someone else's trademark! (I confess, I actually agree with the YRO crew on this one.)

Some nothing about Mir

A free ARM clone

Mozilla totters along

Oh, no! Napster users are facing prosecution in Belgium!

So, the majority of Slashdot is now devoted to demanding control of other people's creations? Am I alone in identifying with the physicists in the laser story who are actually creating something? Or, at least with the Swedish students who are legally copying someone else's creation?

Not that I'm proposing we lie down and take whatever the world gives us -- that ruling that all domain names containing "referee" are off limits is genuinely outrageous. But where did all the hackers go?

Mickey Mouse is not protected specifically by copyright. He is a trademark of Disney. As such the protection for use of his specific image will not expire. I'm not sure how this would reconcile with someone using the trademark, Mickey Mouse, in a story whose copyright had expired. Once the copyright expires on "Steamboat Willie" will anyone be able to market copies of it, since it includes a Disney trademark as it's main character?

Have you never heard of "derivative works"? Nothing is created in a vaccuum. Every creation is inspired by something else. The return of ideas to the public domain is the payback to the society or culture that helped create those ideas.

Trying to get this law overturned in the courts is the wrong way to go about it. Don't bug the judges about this - bug Congress. They write the laws.

But they don't write the treaties (including the copyright treaties), and treaties have a force which overrides law. The only force which overrides treaty is the Constitution itself. There are only three ways to get rid of an onerous copyright treaty provision:

Re-negotiate the treaty to reduce the term of copyright (indeed, it takes a treaty change to allow the term to be reduced), then implement this change in law.

Have Congress withdraw the USA from the copyright treaty.

Get the courts to rule that the extension of copyright retroactively, or for any duration beyond what is necessary to "promote progress in the useful arts", is un-Constitutional.

You tell me which one is most likely to succeed in a reasonable amount of time and with a sane budget.--Knowledge is powerPower corruptsStudy hard

Just one more judge, and sanity would have prevailed. One more! We came so close. I'm truly disappointed.

It's nice to have a judge see our side of it, though. (Slightly surprising, from David Sentelle--he's reputed to be quite right-wing, and I would have expected him to side with big business; I apologize to him for misjudging him so.)

A pity that both the opinion and the dissent repeated the canard that the act's purpose was to harmonize US copyright law with European copyright law--that was a lie from the get-go. Individual copyrights in Europe did extend 20 years longer than individual copyrights in the US--but corporate copyrights were five years shorter--70 years--and are now twenty-five years shorter. I guess neither the apellant nor the amici thought to mention that fact, and now it's in the judicial record where it can deceive law students for years to come. Too bad.

Instead, the dissent suggests that the Congress -- or rather, many successive Congresses -- might in effect confer a perpetual copyright by stringing together an unlimited number of "limited Times," although that clearly is not the situation before us. The temporal thrust of the CTEA is a good deal more modest.

This is plainly illogical on its face. The argument is that many small acts will be strung together into one big result. The Court responds that the instant act is in fact a small act. The fact that the instant act is indeed a small act (and one of many such acts) is entirely consistent with the fear that many more small acts will arrive in the future as they have in the past.

Preserving access to works that would otherwise disappear -- not enter the public domain but disappear -- "promotes Progress" as surely as does stimulating the creation of new works.

Why will these disappear? Libraries won't burn down tomorrow if this act gets overturned. There are projects that exist for the sole purpose of preserving these works once they enter the public domain.

Just take a look at abandonware to see how copyright helps promote the useful arts by preserving old works. Many arcade games and other software is clearly not being preserved, especially in its original form. There is clearly a demand for it, but copyright holders only seem willing to satisfy that with crappy retreads that have little to do with the original in actual gameplay.

Although it's named for Sonny Bono, let's not forget the real purpose of extending copyrights from life of author +50 years to life of author +70 years.

There's a teensy-weensy media conglomorate whose flagship copyright was about to expire. Walt Disney died in 1966, so, under the old system, the copyrights on his works (ie, Mickey) would have expried in 2006. But with the Bono Act, Disney has awhile until it starts getting (even more) creative with the lobbying and the legal arguments.

Of course, even after copyright expiration, trademarks are still enforceable. But that's another can of worms.

Well, duh, we all know that. And so do the judges. The problem is, copyright hasn't been extended to be permanent yet!

So please tell me when it is you think the original Mickey Mouse cartoons will have their copyrights expire.

Better yet, please indicate any copyright that has expired since 1976 to indicate that copyright is not an indefinite right in the US.

The history of copyright in the last 30-40 years has been that it is getting extended, retroactively, faster than time itself. Copyright is not expiring - rather it is being restored, even to things that have already become public domain ! That is what the lawsuit is all about.

For an author/creator: 50 years after their death - however, during those 50 years, that copyright must be held by an heir/spouse.

This way the people that should benefit from the royalties are the proper people.

For a corp (ie Disney): a use-it-or-lose-it 15-20 years after last use method. Okay...when was the last Mickey Mouse movie? 15 years after that, the mouse becomes public domain. My idea here is that if it is not a valuable enough property for them to use, then let the public have it.

While this would not help too much for something like Mickey, flash-in-the-pan things could benefit - like Roger Rabbit. When was the last thing that featured him (with new content)? IMDB says 1996 - with the Best Of, which I'll guess had some new content. So, in another 10 years he becomes the public's bunny.

However, the problem with this is that every 15 years or some, some obscure or older character will suddenly make a cameo appearance in a new title.

Perhaps the term should be longer though. In 1986, Aliens came out. That is still a very sellable title. Perhaps it should be 15 years from the last release date? At least that'd make it easier to get things on new formats as studios hurry to rush things out so they don't lose them.

"Corporation sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense the king is a corporation sole; so is a bishop;

I believe that anyone would be entitled to make copies of specific animated shorts that have become public domain. However, this point is moot, because Disney has purchased enough congresspeople that whenever the copyright is about to expire, the laws are magically changed to allow for another 20 year extention.

1. A 'billion million years' is effectively permanent...
Yeah, but once you're getting to "author's life + x years"... Keep in mind, they were hoping to reduce copyright to author's life + 50 years/75 years (author/work for hire). Saying that the other 20 years changes it from being limited to being permanent is rather foolish.

2. [paraphrase: the extension does not help to promote the arts and sciences]
The problem with this is that it's really open for interpretation - you interpret the extension as being detrimental to progress (I agree). The judges did not. (Well, minus the dissenting opinion.) Proving this is something that's hard to do - most scientists know that almost all progress is based off of previous work. The same is true, in a way, for copyright. Here's where to get's fun - copyright covers artistic creations, not scientific works. (In other words, the copyrighted article describing how a frozit works is protected from copying, but the idea about frozit's is protected by the patent. The patent expires first, but I can't use the original article verbatum - I can write my own.)

So - here's the problem. I can't really think of any proof that extended copyright harms the progress of science and the useful arts. Application of it might (the screwing over of artists via work-for-hire schemes, remember the extra 25 years) - but I'm hard-pressed to prove that copyright law as it stands really hurts the progress of the arts and sciences.

I believe that it does - but I can't really come up with any iron-tight proof, other to say I feel that way. That's why I agree with the ruling.

Plaintiffs sued in District Court, who ruled against them. They appealed to the Court of Appeals for the D.C. Circuit, who ruled against them 2-1 (the decision linked). The appeal was reviewed de novo, which means that the Court of Appeals started with a fresh slate (as opposed to the way an appellate court reviews findings of fact; for instance, the D.C. Circuit should theoretically give deference to Judge Jackson's findings of fact in the Microsoft case).

Plaintiffs can submit a petition for certiorari to the Supreme Court, but there's no guarantee that the Supremes will agree to review the case. The Supreme Court rejects most petitions for certiorari. In all likelihood, the D.C. Circuit's decision is the final decision.

That's not true. The character of Mickey Mouse is indeed covered by copyright. They have a trademark too, and you're quite right that that wouldn't expire, but that only means no one would be permitted to use Mickey Mouse as a corporate logo if they were in the same line of business as Disney (a different line of business would be okay).

The copyright protection on Steamboat Willie isn't just about that one short film, but about any derivative work based on the same character. Right now, no one else but Disney can make a cartoon about Mickey or Donald or Pluto, period, unless they're willing to beg for permission that won't be given, or to pay stupendous licensing fees in the unlikely event that it is. But once Steamboat Willie enters the public domain the character of Mickey Mouse will be public domain, and derivative works will be permitted.

The infinite extension of copyright is really a theft from artists who might wish to make use of such a cultural icon in their work.

(One of the most grating hypocrisies of the whole issue, to me, is that the Disney people see nothing wrong with making a Mickey Mouse version of A Christmas Carol without paying royalties to the heirs of Charles Dickens. Public domain material is fine for them to use, but if their goodies enter the public domain it'll be a catastrophe. What bastards.)

First of all, please understand that ideas, in and of themselves, are not protected by law in any way. There are two means by which intellectual property is protected: copyrights and patents.

A copyright protects the expression of an idea. Thus I am free to write a play or a movie script about two adolescents who fall in love and commit suicide without licensing from Shakespeare, and I am free to paint a portrait of an enigmatic smiling woman without offending the estate of Leonardo.

A patent protects a specific implementation of an idea. A patent cannot be obtained unless an idea is reduced to practice.

Despite the questionable patents (one-click ordering) and copyright laws (DMCA) that we have been seeing lately, it is important to recognize the essential tension between the property rights of the individual and the interests of society as a whole. Would it be a good thing for Western culture if Shakespeare's heirs still held copyright on his plays? This tension is recognized in the fair use doctrine and right to create derivative works for copyright, and the short time period for which a patent is effective.

Given that law does not recognize the concept of ideas as property, the notion of permanent copyright is particularly odd.

This is the entire Achilles' Heel of the indefinite-copyright advocates; the grant of copyright exists for a specific purpose, and may not be legitimately used for any other (including and especially to allow wealthy people to extract monopoly rents from the populace).

While this is a legitamate argument, I find it ironic in this setting. How well would it fly if we were talking about gun law and someone brought up the phrasing and "specific purpose" given in the 2nd amendment (USC)? From my expereince here, I suspect not well.

Additionally, don't forget the 9th amendment (my personal favorite) which protects even those rights not spelled out in the document. The high court could easily find that even without the explicit language in the constitution that the right to control the fruits of your intellectual and creative labor should be "retained by the people".

Finally, on a personal note, my favorite artist was and is Harry Chapin. During his life, he set up a foundation called World Hunger Year to fight poverty in ameica and abroad (without the silly posing, he really did "fight hunger before it was cool".) AFAIK, royalies from the sales of his records, including those collections edited and published after his death continue to fund that foundation. That a man who cared deeply about something could have his the work of his life keep working years after his death is a good and beautiful thing (tm) and its hard for me to say "no, he should have lost rights to his work ten years or less after he did it and definitly terminate any control with his death" or whatever limited copyright means to this group. I also have intelectual reasons for supporting IP, but the emotional helps make it more relevant at times.

Why is this thought-out viewpoint moderated to troll status? It may not be popular with most/. types, but it's hardly of penisbirdguy content; it is thoughtful and interesting. Gimme some mod points to help this poster out...

I think you forget the reason why right-wingers are right-wing. They don't do so simply to promote businesses, they do so because they want full freedom, which includes freedom to businesses. Left-wingers tend to want to reduce the freedom of some to enhance the freedoms of others. This is an overgeneralization, of course. And, it is true that recently the Republican party has been catering more to the big businesses than to the general public, which is why some of us are defecting to libertarianism.

Acticle 1, Section 8 of the US Constitution grants Congress the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Extending copyrights - and patents for that matter - ad absurdium does not "promote the progress of science and the useful arts". In fact, it has just the opposite effect. A limited time to exclusively profit from one's work provides an added incentive to perform and publish creative work. (Although there is already an incentive without this added benefit, because if you don't publish your work, what have you really accomplished and who will know?) Providing extremely long periods of exclusive rights simply promotes the lining of people's pockets beyond any reasonable simple incentive.

This does not promote the progress of science or the "useful arts", but disincentivizes progress. For example, let's say you come up with a great idea for an invention or book or whatever that is based on somebody else's work. You would probably want to publish what you have come up with, but you might decide not to do so when you figure out that you will have to pay a royalty or licensing fee to the person who published the idea your work is based upon.

Plus, these ridiculously long copyrights and patents are anti-free market. It artificially inflates the price that a given idea or work would be worth if there were more than one source available. So, during the protected period of an invention's or creative work's life the price paid does not reflect it's true value or worth to society as a whole, or to those who would use it, but rather includes some value based solely on the exclusivity.

Extending copyrights (or patents) retroactively means that you are adding incentive to publish or share ideas to those who already decided that the previous incentive was sufficient - otherwise, why would they have published under the old laws. Since the Constitution only grants Congress the power to give copyright and patent protection "To promote the progress of science and the useful arts", retroactive extention of these protections is clearly unconstitutional.

The best law I've seen in dealing with this subject is Old-Testament law (and probably other laws from that period/area). What they do, is, instead of trying to give a precise description, is they give several for-instances, and let the human mind do what it does best - generalize. Instead of trying to write down the generalizations (which are never properly understood), you have several instances, and the situation-at-hand is matched against the given instances to find which it best correlates with. Some may find this archaic, but it is much better because it keeps the spirit of law much better. Now, there are always bad judges and poor interpretations, but this method of law I think gives the best framework.

The very idea of copyright allows someone to produce a written work and then sit on his ass for
life + 50 years making money from copies.

I don't have a problem with people owning property and maintaining it for their descendants. I do however have a problem with copyright on copies made by others.

I personally believe the property system needs to take into account that modifying a copy does not modify the original. This is what the entire software industry is based on. The first copy may cost billions. The second and after cost only the price of media. Another case is the fact that open sourcing a piece of software does not cause all copies of such software to be modified. If I modify my copy I have not modified yours. If I want to modify your unbreakable firewall code to weaken it, I have to break into your firewall in the first place.

People ignore that this independence between copies exists, and it's leading to some bizarre conclusions.

Preferably copyright would be tiered. I have permanent copyright on any copy that I make by my own hands. Some long-term copyright over those hired to mass produce my work as it is an expense, and a very limited copyright over those who purchased my work, since it is an expense to them.

In the briefs on appeal, neither side made much of an issue of whether Plaintiffs had standing to bring this challenge. (Standing is a threshhold matter, not just anyone can challenge anything, a court will only reach the merits if the party bringing the challenge has standing to do so).

In oral argument, though, the question of whether Plaintiffs had standing under the First Amendment to bring this challenge became a very big issue indeed, to the point that some were worried that the case might be lost on that ground.

While no real solace to the Plaintiffs here, the Court found that there was a sufficient nexus to the harm which Plaintiffs might suffer so that they did have standing to challenge CTEA. That part of the decision, which was unanimous, certainly can be helpful in other contexts relevant to the kinds of matters often discussed in YRO.

The government has offered no tenable theory as to how retrospective extension can promote the useful arts.

IIRC, the government doesn't have to, since the plaintiffs did not make a consistent case that promoting the useful arts had anything to do with a limitation of congressional power. This is unfortunate, because excepting the argument about limited terms, the other two arguments they placed forward were obviously ridiculous. Here's what the ruling says about their attempts to argue the limited term contention:

Here the plaintiffs run squarely up against our holding in Schnapper v. Foley, 667 F.2d 102, 112 (1981), in which we rejected the argument "that the introductory language of the Copyright Clause constitutes a limit on congressional power." The plaintiffs, however, disclaim any purpose to question the holding of Schnapper; indeed, they expressly acknowledge "that the preamble of the Copyright Clause is not a substantive limit on Congress' legislative power."

So everyone agrees that the preamble is not a limiting factor on Congress's power because the courts have previously ruled this to be so. I guess being lawyers, they must argue this way. However, to actually believe that the preamble doesn NOT limit congress's power is to believe the clause as written is sheer nonsense.

Literally speaking, 10^50 years is a "limited time", even though it exeeds the probable lifespan of the entire human race. The majority does admit that it is possible to challenge copyright extensions based on rationality, but not rationality to pursue the purpose of the copyright clause. If this is true, then the founders were blowing smoke out there ass when they used the word "limited", since any period can be used if it can be argued to serve any purpose, however limited and ultimately detrimental to public discourse.

Judge Sentelle's dissent is a masterful piece of legalistic quibbling that attempts to show that something that walks like a duck and quacks like a duck is not necessarily a duck. He argues that the preamble is not a preamble per se, but an explicit grant of power to Congress to "promote the useful arts." Congress if further granted the means to pursue this "By securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Thus Congress has no explicitly enumerated power to secure exclusive rights for an author, except as a means to promoting the useful arts.

This is actually a pretty good argument, except that it does not differ in any meaningful way from saying that the preamble is a limitation on the power of Congress to grant copyrights. If you accept that the preamble does not "limit" Congress power to secure monopolies for authors, you cannot also hold that Congress' powers are expressly enumerated in the constitution.

It looks to an outsider like a bloody mess, and it will probably take the Supreme Court to sort it out.

The notion of property is fundamental to any society. Property
is in itself an intellectual idea, and as such does not just have
remit over physical objects, but can be just as well applied to
the world of ideas.

The division between physical copyright laws and intellectual
copyright laws, is then a false dichotomy.

Bzzzt, sorry. Thanks for playing. The difference between
physical property laws and intellections property laws is quite
obvious. (I'll assume you meant property above, since there
isn't such thing as a "physical copyright" law.)

Physical property laws exist to protect something that is
naturally scarce. If you take the computer desk I built, I no
longer have my desk. However, you're completely free to make
your own computer desk, and to even make your desk exactly the
same as mine. Maybe I worked hard to make it a really well
designed computer desk, but you're free to take advantage of all
my hard design work and make exact copies. If technology is
developed that lets you easily make exact copies of my desk, I'm
still out of luck. This is perfectly reasonable, since your
creation of a desk hasn't taken my desk from me.

Now let's say I create something protected by intellectual
property law. I think I'll write a novel. To an extent,
physical property law still applies. If you steal my manuscript
(and I didn't make a backup), I no longer have it. If we're
treat physical and intellectual property similarly, why can't you
make copies of my novel? After all, I'd still have my original.
Copyright law creates an artificial restriction that limits what
you can do.

We can own a physical object forever, I do not
see why we cannot own an idea, like a disney film or character,
forever too.

Why not? Because ideas tend to propogate. The common phrase
for this is "Information wants to be free." Information and
ideas aren't alive, they don't really want anything,
it's simply a quotable simplification of the fact that
information tends toward freedom. Your seeing my desk
doesn't give you a desk. However, your seeing my desk does give
you the idea of my desk. Once you've seen my desk or
novel, nothing I do can keep you from taking that idea away from
you. Trying to restrict the spread of an idea runs against the
natural tendencies of ideas (or more specifically, the natural
tendencies of the humans holding those ideas). Granting
"ownership" of an idea is granting ownership of ideas held in
other people's heads. It's granting control over what
other people can do. I, for one, don't want to live in a world
where most of the stuff in my head in "owned" by someone else.

Copyright was created in the United States dispite all of
these problems "to promote the progress of science and useful
arts...." It was decided it was worth fighting the inevitable
"for limited times" to this end. It was not an attempt to create
an eternal privledge.

I think that those who would limit intellectual copyright laws
are trying to deny our freedoms....

I think those who would extend copyright laws are trying to
deny our freedoms. Copyright law gives other people control over
what I can and cannot copy.

The CTEA is but the latest in a series of congressional
extensions of the copyright term, each of which has been
made applicable both prospectively and retrospectively. In
1790 the First Congress provided, both for works "already
printed" and for those that would be "[t]hereafter made and
composed," initial and renewal terms of 14 years, for a
combined term of 28 years....

eg. It's been done many times before, and it was fine all those times, there's no reason this one is any different.--

It's nice to have a judge see our side of it, though. (Slightly surprising, from David Sentelle--he's reputed to be quite right-wing, and I would have expected him to side with big business; I apologize to him for misjudging him so.)

Reading his dissent, it doesn't seem to come from an ideological standpoint so much as a technical one. The powers of each branch of the federal goverment are entirely enumerated in the appropriate clause of the constitution. Any power not granted there, the federal governemnt simply doesn't have. Now there is huge room for interpretation -- you might agree to this in principle but allow certain enumerated powers (particular interstate commerce) to take on all kinds of weird and wonderful new manifestations. But it to argue that Article 1 of the US constitution gives Congress the power to grant exclusive rights to authors for purposes other than promoting the useful arts -- even to the detriment of the useful arts -- requires wilfully ignorance of what the framers set down in plain English for us.

So, Santelle might still be a right wing zealot -- we don't know. All we do know is he's a propeller beanie type legal technician (which to my mind is a compliment to a judge).

> The division between physical copyright laws and intellectual copyright laws, is then a false dichotomy.

Nonsense. There are two major differences between physical property and intellectual property.

1) Physical property cannot easily be replicated. Hence, if you give someone else an object, you no longer have that object. Intellectual property can typically be replicated trivially. If I give someone else an idea, then I still have the idea. This is a critical distinction. The whole notion of right to life, liberty, and property exists in the context that you cannot casually be deprived of those things. Nobody's arguing that anything should be taken away from anybody. Disney can continue to use Mickey Mouse if the copyright lapses. They just wouldn't be able use the government to prevent others from using it as well.

2) The whole concept of intellectual property runs contrary to free speech, and by implication the concept of liberty. By granting permanent, exclusive license to an idea, government prevents others from using or sharing that idea freely, and that deprives individuals of their liberty. Intellectual property, unlike physical property is wholely and entirely a construct of the government.

If you refer to the Constitution, the intent was that copyright laws be finite in duration (much like patents). Since they admittedly restrict liberty, they are only defensible in that they promote the arts (the constitutionally stated purpose behind copyright law). As the dissenting opinion pointed out, extending the duration of copyright on works already created does nothing to stimulate the creation of those works (especially when the creator is already dead, as in the case of Walt Disney).

The real hypocrisy of Disney (the corporation) in this matter is that Disney has a history of making films based on works that have lapsed into the public domain (thereby sparing themselves the expense of buying film rights to copyrighted works in many cases). The concept of copyrighted works lapsing into the public domain is an old one, long predating Marx, and Disney has taken thorough advantage of it. They should be willing to give something back eventually.

I understand you're new around here. I suggest you read our Constitution before you start calling us all a bunch of Marxists.

I think that those who would limit intellectual copyright laws are trying to deny our freedoms, and imposing an unworkable and unfair solution.

Do you feel the same way about patents? Should they last forever? Doesn't allowing patents to expire infringe upon the freedom of the creators to continue to profit from their invention?

On a seperate tack, don't you think there should be some sort of time limit? Should William Shakespeare's descendants be making royalities off every copy of one of his plays sold? Or any movie based off one of his plays? Or how about Mozart's descendants getting paid any time one of his symphonies are performed?Before you answer that, consider that had those works not passed into the public domain years ago, it would be highly unlikely they would be as well know now... Their works would have been performed less, made into books/records/movies/whatnot less, etc.

Copyrights need to expire at some point. I'm not saying I know what the magic number is, but it needs to happen eventually.

I do not see why we cannot own an idea, like a disney film or character

Note that Mickey himself is a trademark... so his ownership isn't going to expire, regardless.

"To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries."

The plaintiffs are corporations, associations, and individuals
who rely for their vocations or avocations upon works in the
public domain: a non-profit association that distributes over the
internet free electronic versions of books in the public domain;
a company that reprints rare, out-of-print books that have entered
the public domain; a vendor of sheet music and a choir director,
who respectively sell and purchase music that is relatively
inexpensive because it is in the public domain; and a company
that preserves and restores old films and insofar as such works
are not in the public domain, needs permission from their copyright
holders -- who are often hard to find -- in order to exploit them.

The CTEA is but the latest in a series of congressional
extensions of the copyright term, each of which has been
made applicable both prospectively and retrospectively. In 1790
copytight term was established at 42 years. In 1909 it was extended
to 56. Between 1962 and 1974 the Congress passed a series of
laws that incrementally extended subsisting copyrights. In 1976 the
term was drastically increased to the life of the author plus 50
years. The CTEA amends this scheme by adding 20 years to the term
of every copyright.

The preamble "To promote the Progress of Science and useful Arts" does
seem to establish a guideline for how to limit copyright. But the
Schnapper ruling of 1981 rejected the argument "that the introductory
language of the Copyright Clause constitutes a limit on congressional
power." The plaintiffs did not dispute Schnapper. Therefore the court
can't consider the argument that the preamble limits Congress's powers.

Even if the court could, it would still rule the same way. The CTEA
is in line with the European Union, and that's "a powerful indication" that the CTEA is
necessary and proper, since we love ABBA. So what if the EU is not bound by the Copyright Clause of our Constitution? The court believes that extending copyrights actually preserves works because it gives copyright owners a motivation to preserve them, and thus "promotes Progress."

In sum, we hold that the CTEA is a proper exercise of the
Congress's power under the Copyright Clause. The plaintiffs' first amendment objection fails because they have no
recognizable first amendment interest in the copyrighted works
of others. Their objection that extending the term of a
subsisting copyright violates the requirement of originality
is stupid because something doesn't lose originality by being
out of copyright. Duh.

Whatever wisdom or folly the plaintiffs may see in the
particular "limited Times" for which the Congress has set the
duration of copyrights, that decision is subject to judicial
review only for rationality. This court is deferential to the
judgment of the Congress, and the courts shouldn't stick their
noses into it. This is no less true when the Congress modifies
the term of an existing copyright than when it sets the term
initially, and the plaintiffs -- as opposed to one of the amici
-- do not dispute that the CTEA satisfies the preamble.
Maybe if the plaintiffs actually argued this point --
which we think Schnapper indicates they'd lose -- before a full
court, they'd have a case. Till then, fuck off.

Dissent by Judge Sentelle

I just want to say that I probably would have ruled against the plaintiffs
too, but my fellow judges are nitwits, so I'm not going to agree with their
reasoning.

Even though the plaintiffs didn't dispute Schnapper, an amicus brief did.
When the other judges say they can't consider that argument, they're being
asses. In fact, it's what amici are for. (As long as it's not introducing
new issues, and merely arguing the same issues in a new way, it's fine.)

Also, I'm a strict constructionist (wassup, Dubya), and I don't think Congress can just
go around passing laws as it damn well pleases. And these copyright extensions
are effectively extending copyright indefinitely. The government has offered
no tenable theory as to how retrospective extension can promote the useful arts.

I don't even think Schnapper is applicable in this case, because
Schnapper dealt with limited questions related to the application of the copyright laws to works commissioned by the U.S. government. And what the
fuck does the European Union have to do with our copyright law? Goddammit.

> Face it, if they decided that copyright lasted a billion million years or whatever, it's still "limited."

Actually, the current situation is far worse than one billion million years. Congress has a tendency of extending the duration by 20 years every twenty years, just before a certain set of 1923's Disney copyright are about to expire. So, in a billion million years , duration will be a billion million years + 20, and in two billion million years it will be two billion million + 20 again. See, this pattern of increasing copyright duration effectively makes copyrights last longer than any possible constant duration, i.e. infinite.

Congress should of course be free to revise duration, but not in this way. Add an article that congress cannot extend copyright duration faster than the a certain passage of time. That is, forbid them from extending it by more than x/2 years if the last revision was less than x years ago. This would guarantee that any copyright will expire eventually (in at most twice the current duration), and will remove incentive of high pressure lobbying congress to extend the duration once again.

The court's argument against your argument was that copyright protection encourages copyright owners to preserve works under their copyright, which is better than just having those works disappear. (Think of movies, e.g. which are on highly ephemeral media.) It's an astoundingly weak argument.

Their other arguments are that Congress can do what it damn well pleases, the EU has just as bad copyright law, and that the plaintiffs didn't bring up the best argument, which you more or less outlined above.

The plaintiffs did bring up the argument, but they gave the court an out by not disputing Schnapper.

As I understand it there's quite a battle going on regarding treaties. Basically, can treaties self-execute as law when agreed to, or would Congress have to pass laws in the normal manner to bring the US into compliance with otherwise toothless treaties.

The issue is this: Constitutionally, the powers of the Executive and Legislative branches are limited. For example, only the House may propose an appropriations bill, and it may only become law if passed by majorities of the House and Senate, and signed or allowed to pass into law by the President.

So, if treaties can self-execute, could not the Senate and the President, without any input whatsoever from the House, agree to a treaty that levied a tax?

They have no Constitutional power to do so directly. What is at stake is their ability to do so indirectly.

I'm pretty firmly in the non-self-executing treaty camp. What parts of the government have no power to do on their own, they have no power to do through other means.

Treaties can have no actual binding force if no laws are passed enacting the provisions of the treaty. To do otherwise would be to place our soverignty in the hands of 2/3rds of the Senate, the President and foreign nations. Which would be highly unconstitutional.

This also implies however, that any treaty (or provision therof) which requires unconstitutional laws to be passed to enact them cannot take place. Thus, if the courts rule current copyright terms to be unconstitutionally long (they are IMHO, and I'm a frickin' artist!) those parts of the treaties (and any enacting laws) go to jail, go directly to jail, do not pass go and do not collect $200.

A few good ruling in the courts could bring the whole house down to acceptable and legal levels.

Just because something doesn't have a physical manifestation doesn't mean that it isn't worth anything. If I hack into my bank acount and "update" the balance, I haven't "taken anything" from anyone, it doesn't "cost anything" according to you....but the fact is that it does. It costs everyone else in the diminished value of their holdings. This is exactly analogous to you pirating an Adobe product because you don't want to pay for it; there IS a cost associated with stealing that software, in that it diminishes the value of others' work as well as the capital and educational investments made by the investors (and the programmers, marketers, educators, suppliers, etc...). The world would be a much less interesting and lively place to live if no one had any incentive to produce intellectually grounded works and expect compensation. Make no mistake, there would be much MUCH less intellectual output today if no one was compensated and their output wasn't protected. You may not like the fact that others are making money that you aren't, but that doesn't automatically make it acceptable for you to take it by force or other means.

Note that I am not defending the excesses that can occur under the current system....but just as I wouldn't advocate eliminating alcohol from society just because a small percentage of people abuse it, I can't condone violations of IP law just because a few IP owners abuse their position. To do so would in fact undermine the rights and protections we have in our modern world, not enhance them.

In an ideal world, maybe we wouldn't need IP law and IP protections...everything could be free because there would be no scarcity, and hence no need to enhance that scarcity to encourage production. But as long as there is scarcity in ANY part of our economy, losses in any OTHER part of the economy diminish the value of the whole. But then again, in an ideal world no one would be stealing tangible objects either...or killing, maiming, insulting, assaulting, etc. etc. etc.

Nothing personal, but that is roughly the worst reasoning I have ever heard. Just because one person decides to use the money he has gained through constitutionally shady means for a good purpose, does not make it right that he got that money in the first place. That's like saying, "Well, when that theif stole my car and sold it, he gave the money to the homeless, so it's okay." Umm, duh, it's not okay. It was *your* property, stolen, and just because the proceeds were given to a good cause doesn't make it right.

How does this relate directly to copyright law? People--big corporations and wealthy IP brokers--are *stealing* our property--our IP. Once copyright expires, the work becomes public domain--meaning it belongs to all of us, to the society and culture which inspired and nurtured it in the first place. So, people who extend copyright beyond constitutionally intended terms are *stealing* from our entire culture, from all of us. As a specific example, about six years ago the RIAA started demanding royalties from the Boy Scouts of America for singing popular campfire songs. These are songs which have been sung around the campfire for decades, some which my grandfather probably sung when he was a boy, which would have obviously been public domain and freely used if copyright had not been stretched and beaten into submission by organizations like the RIAA--and here, they were trying to extract royalty payments from the Boy Scouts! How much more evil and greedy can you get? Denying kids the opportunity to sing songs which had become part of our cultural heritage, unless they pay up. That is fucking disgusting, and attitudes like yours allow it to happen. You're well-meaning, but you lack understanding of the scope of this IP mess. Do you want everything ever written, sung, painted, or filmed to be copyrighted and forbidden to use and forbidden to become part of the public culture, until it's so old that it's too late for anyone to bother? Because, that's what we're in the process of doing. People are afraid to create things that are too closely inspired by works which may have been created fifty years ago, for fear of being sued for copyright infringement. Studios won't touch many things, and keep releasing tired retreads of movies they made forty years ago--and why not, it's still their IP, why innovate when you can just reach into the vault and mindlessly vomit something back up? The Boy Scouts and other ouh groups have to keep kids from singing copyrighted songs around the fire, or worry about paying royalties. That's sick. Our whole goddamned society is fucked up because of corporate greed like that.

Honor systems have not yet worked - witness Stephen King's experiment last year

Check out the income/expense report at Stephen King's web page [stephenking.com]. He made $463,832.27. That's NET not gross. Sure that's peanuts for Stephen King but I'd say that's damn good for experiment #1. King tried to point this out to the publications that called it a failure, but they didn't publish his letters. Can you guess why?

Yeah this has nothing to do with copyright terms but I felt like pointing it out!

The majority obviously has never studied mathematical induction, because they today upheld the "inductive" step in the proof that Congress can pass laws which protect copyright for unlimited times.

The error in the Appeals court's reasoning is that the statement "Congress may pass a retroactive copyright extention" is mathematically equivalent to the statement that "Congress may preserve Copyright for unlimited times". Such a power *allows* the result that every 10 years Congress may (by citing this precedent) retroactively extend copyright by another 10 years. The dissent had it exactly right.

You repeat the majority's error by saying that "it" hasn't happened yet. What is "it"? "It" is the passage of a law that cites an improper use of constitutional authority as it's justification. Your view says that we actually have to wait until the end of time until we say "Gee, that didn't work the way it was supposed to because somehow no copyrights ever expired."

A better solution would be to spesify that the new limits only apply to *new* copyrights. After that, no one would ever extend them again, since no one really cares what happens 75 years after their death...

Ummm...it's only exploitation if the musician, author, or programmer is FORCED to make their music, writing, code available to the exploiter(s). In the situation you're talking about, they don't have to if they don't want to.

So I repeat my question: why do content producers have to make some sort of compensation?

. If I hack into my bank account and "update" the balance, I haven't "taken anything" from anyone, it doesn't "cost anything" according to you

No, according to me you would have stolen money from the bank, duh. They might not know where it went, but they certainly wouldn't have it anymore.

IS a cost associated with stealing that software, in that it diminishes the value of others' work as well as the capital and educational bla, bla, bla, bla....

You use a lot of words here, and say nothing. My using Photoshop without paying for it doesn't diminish the value of the work done by Adobe in anyway unless I was going to pay for it. Whether I use the software or not has no effect on the value, the compensation, whatever.

The plaintiffs in Eldred v. Reno thank all those who participated in the debate about the constitutionality of copyright extension. We especially wish to thank our many supporters and those who gave the case direct aid (we haven't needed money, just brains). The Berkman Center for Law and Internet at Harvard Law School, Lawrence Lessig (now at Stanford), Charles Nesson, Jonathan Zittrain, and the law firm of Jones, Day, did an outstanding job of representing us pro bono against Bono.

Although we lost this particular case this time, the battle of strong "intellectual property rights" advocates against the freedom of the rest of us goes on. Cases such as the DeCSS cases and others demand our participation in deciding issues about how law and technology can get along. The issues have extended from copyrighting books now to copyrighting the human genome. Patents on AIDS drugs may meant life or death for many people in Africa who could never afford a computer.

It is important that we not get discouraged, but that we continue the good fight--we are right, we will eventually prevail, and your children will appreciate what you can do right now in this long struggle for freedom online. Thanks for taking part in this debate and discussion.

The most important grant of rejection is that the plaintiff "lack any cognizable first amendment right to exploit the copyrighted work of others".

The basis of this claim is the supreme court's precedent Harper & Row vs Nation Enter.that explains how the regime of copyright itself respects and adequately safeguards the freedom of speech protected by the first amendment.

The court explains this inherent protection as residing in the distinction between non-copyrightable ideas and copyrightable concrete expression.

The court reasoning is self-contradictory. According to this line of reasoning

the first ammendment does not protect concrete expression but only ideas ( which will presumably allow government to dictate which words journalists can use).

no legislation concerning copyright can infringe anybody's first ammendment right.

The first point makes an impossibly hard distinction between concrete words and ideas.
Can I express the idea of Donald Duck without using the concrete expression "Donald Duck"? Try at home! Can I express the emotional force of using obscenities in a clean language?

The second point is both circular and self-contradictory. The court admits, pace itself, that there is some tension between the Constitution's copyright clause and the first ammendment.

It should follow that copyright
is a restriction of speech ( otherwise, where the tension?). And therefore any statement that a copyright regime adequately safeguards free speech must come not from the principle of copyright (which is in tension with the free ammendment), but from the balance obtained in a particular application of copyright. In other words, the totality of copyright, the free use of ideas, the "fair use" doctrine, the time limits, etc., constitute a balance. Any act that changes that balance cannot possibly be sanctionned based on the constitutionality of the previously existing balance. Yet the court draw the opposite conclusion: the (untenable) distinction between ideas and expression has always been held to give adequate protection to free expression. Thus the court basicly says that an issue of fact, whether free expression is preserved by a particular act of congress, can be decided in principle without attending to the facts and to the particular act in question.

If we were to apply it to other laws, no law would ever fail. Since every law that affects constitutional balance ( security vs. privacy , free speech vs. harm , etc.) is passed on the background of a balance that has already been sanctionned as constitutional.

It almost seems pointless to argue. As Bush vs. Gore made plain, legal arguments are used as FUD to cover deep political symphaties. I bet that any research will discover that the majority has a record of protecting commercial interests and the dissenter has a record of protecting civil rights.

It's nice to have a judge see our side of it, though. (Slightly surprising, from David Sentelle--he's reputed to be quite right-wing, and I would have expected him to side with big business; I apologize to him for misjudging him so.)

Right wing, especially among judges, often means favoring a more literal, limited interpretation of the Constitution. Among Congresscritters and others that face election often, this isn't the case nearly as often, but it seems that the proviso giving judges lifetime service worked mostly as intended, and gives them a unique perspective on judging law and cases.

I think you forget why left-wingers are left wing. Left-wingers want maximal freedom, which includes freedom of speech, freedom of a woman to terminate an unwanted pregancy, and freedom of a person to seek employment without having their race, gender, or sexual orientation be considered as part of the hiring decision. Right-wingers tend to want to reduce our freedom in pursuit of a Protestant theocracy.

And it's true that recently the Democratic party has been catering more to the big businesses than to the general public, which is why some of us are defecting to the Green party.

Personally I think conservatism is just an odd, and probably temporary, alliance between the lassez-faire capitalists, the evangelical/fundamentalist Christians, and the gun nuts. All of whom abuse tend to abuse the word "freedom" in their propaganda.

Liberalism has it's strange cliques as well, e.g. the P.C. language police that make academia such an odd and uncomfortable place for some of us, including me. But overall I find liberals to be a more thoughtful lot than conservatives, and with a much smaller, although equally vocal, lunatic fringe. --

IP, on the other hand, can be given and kept at the same time since the cost of copying digital data is essentially zero, and once you have a perfect copy, I haven't had to give mine up to give it to you.

In other words, we are creating artificial scarcity to make *intellectual* property act more like physical property because that's what we're used to. This is, to put it mildly, extremely stupid.

,I>We're talking about companies like Disney, who released Snow White 60 years ago, and are so desperate to make money, they refuse to give up a single revenue stream -- because it is more profitable to lobby Congress and ensure infinite protection for those revenue streams, rather than to let them go, into the public domain, like they should be.

Which effectivly has the opposite effect compared with the original intention of copyright. Instead of producting new works they can just trot out old works.

Content creators should be compensated. But Disney should not be able to hold onto their IP forever. That is not good.

It a free market all they get is the opportunity to be compensated. No kind of guarentee.

The court's argument against your argument was that copyright protection encourages copyright owners to preserve works under their copyright, which is better than just having those works disappear. (Think of movies, e.g. which are on highly ephemeral media.) It's an astoundingly weak argument.

Especially weak when the media is more ephemeral than the copyright. Either the media degrades or it ends up wiped/sent to a landfill... Decades before the copyright expires.With a shorter copyright there might be some chance that copies would exist to go into a "public domain".

The way copyright law is is that a person can restrict all other people from doing anything similar enough to what they have already done.

This is the way US copyright law works, becuase it was specifically intended as a short term attribute. Other copyright laws which started out long term tend to be far narrower in what is considered an "Infingement".

Similarly, if someone wishes to write a new story based on Romeo and Juliet, they should not have to track down any living heirs to Shakespeare and negotiate intellectual property rights. Shakespeare had no expectation that he would own the rights to his works beyond his lifetime, and probably expected to be copied within a few years, if not months, of producing his work.

Also Romeo and Juliet is simply a rehash of a pre-existing story anyway.

Similarly, do you think any film or music company woould refrain from making CD or motion picture simply because they'd lose the rights in 20 years instead of 75? They make most of the money in the first couple of years anyway, and additional time is just a nice bonus in the rare cases where a work has lasting value.

Sometimes even less. An even more silly example would be a newspaper. You also have situations such as commercial software companies which explicitally consider old versions "obsolete" after only a few years.

I don't think using the word "propaganda" is exactly fair. A lot of those people truly believe what they say...

Whether they believe it or not, it's still propaganda.

As far as gun rights go, I happen to support them. I don't bear arms myself, but I support the rights of others to do so. What I don't support is (a) treating gun rights as the most important political issue, and (b) the alliance between the gun nuts and the evangelical Christian theocrats. By making such an alliance, the gun nuts are exchanging protection of gun rights for more important ones that the theocrats would love to take away. --

For example, the copyright of a book can be 5 years. While the copyright of a computer software might be 3 years.

Such a timescale also means that there will be copies to go into the public domain. With the current set up it's quite likely that in order to get anything into the public domain will need an acheologist. (Especially if it's been dumped in a landfil for 50 years.) Even if the media is robust enough will anyone be able to read it in even 20 years?

What gets me about copyright extension is that for popular artists, it creates a government handout for their estates and offspring. Why on earth should someone's children profit from continuing sales of their parent's works?

Or even grandchildren...Depending how many of these copyrights actually belong to the original creator. Rather than having been sold to some publishing company.

You have that problem no matter what. This method gives you the benefit of how the brain works normally. Usually, the examples themselves limits the context of the law. The way you keep this from getting out of control is to appoint good judges, and, well, that has always been the case. This differences is, with U.S. law, its hard to tell what the lawmakers were thinking, and therefore hard to rule on what the law is trying to say. With "law-by-example", it is much easier for an honest judge to understand the intent of the law. A dishonest judge will not work well in either case.

actually, I was demonizing him for being a hypocrit, by bashing on me for making a (incidental to the point of my post) personal comment and then going on to whine about how the poor little boy scouts were being hurt by IP.

Your straw man irritates my sinuses, so let's return to those thrilling days of yesteryear and read the actual argument in question:

These are songs which

have been sung around the campfire for decades, some which my grandfather probably sung when he was a boy, which would have obviously been public domain and freely used if copyright had not been stretched and beaten into submission by organizations like the RIAA--and here, they were trying to extract royalty payments from the Boy Scouts!

(Emphasis added to make it a bit more obvious that the objection was is not to IP per se, but to the encroachment of IP into what had been the public domain.)/.

People who like to draw and make music will draw and make music no matter who's listening. People who think their content is good will try and expose other people to it. If enough people think the content is good, they'll organize a way so that they can ALL look/listen to it.

What YOU'RE asking is, "if they are not compensated, how can they make any money at it?" - which is not the same question. I contest your assumption that there will be no "good art" if artists do not receive significant sums of money for their work.

The producers of this content were funded by wealthy patrons like the De Medicis and the Vatican, painting portaits occasionally for them, or doing the ceiling of the Sistine chapel, for instance. Without that patronage, these artists, or content providers, would not have been able to create these masterpieces in their spare time while earning a living from other means.

I think you're greatly underestimating two things about modern times:

Our standard of living is MUCH higher than it was in the Renaissance. We can afford to work only 8 hours a day, 5 days a week, making enough money not only keep our families fed, but to have some left over for hobbies. Greatly different from the typical hand-to-mouth existence back then. And plenty of time/resources for motivated individuals to create impressive works of art.

The technology we have available can make individuals infinitely more productive than the artists back in those times. The same amount of effort that it took an artist & his studio (including assistants) to create a huge mural now results in a "movie", which hundreds of thousands of individual "pictures" instead of just one big one. Not only that, but with a high enough demand, new products will be developed which will leverage the productivity of the artist - and will be targeted within the price range of the artist.

There WILL be patronage - like you said, in the absence of copyright, that's one of the main methods that artists used to get enough resources to do big masterpieces. In our day and age, that will involve the patronage of large organizations such as corporations as well as rich individuals. (Much in the same way that they sponsor sports events & charity - all in the name of being a good "public" citizen.)

You'll note that unlike today's "intellectual property"-focused legislative environment, however, that those sponsors & artists did not create those works with the expectation that they'd be able to make money hand-over-fist by charging people to view/listen to the work (except for maybe a season of performances). The sponsors did it for public relations & to show off their wealth, the artists were performing a service based on the demand of their sponsors.

For those artists who made their living by creating art (like playwrights), they were REQUIRED by the marketplace to be continually creating new work - they couldn't just ride on the success of a one-hit wonder, because if it became popular, it would start popping up in various forms all over the place w/o making the originator any money. So they had to keep creating new stuff to keep their audience happy, unlike today's environment where the owner of the copyright (often a corporation) can expect to force people to pay for that piece of "intellectual property" far beyond its initial lifetime - a lifetime greatly extended, not by popular support, but by legislation.

Content is very similar to any other commodity: labor added to raw material produces a good. The labor is not free.

You're partially wrong - your personal labor is free, although finite. Its OTHER people's goods & services which you have to pay for, and that's not art - that's just the normal market. Many interesting techniques & technologies have come from people w/limited means trying to make do, not from people who had unlimited resources.

Just because a song or a movie is somewhat less tangible than a brick or a monitor does not make it less real or less valuable.

Sure it does. The monetary value of a song or movie is defined by what people are willing to pay to hear or see it. If you're talking about some abstract "artistic value", then why are you asking me to pay money for it? (And why are you expecting me to assign the same "artistic value" as you do?)

In the absence of intellectual property laws, and given the availability of insignificant distribution costs, people aren't going to be willing to pay a whole lot. (On the other hand, something popular is quite likely to reach a whole lot more people than it would have previously.)

Just because the ARTIST thinks it's worth a lot doesn't mean that it is.

With today's technology, there is NO "real" reason why those things have monetary value - the only reason people have to pay for them is because the laws say they do.

Why don't content providers deserve compensation?

And I repeat - why do they? Because of hard work? If I worked 14 hours a day shoveling tons of shit, that would be hard work. Would I "deserve" lots of money? Or would I get just what somebody else was willing to pay me?

The only argument which has any basis in reality (not some fuzzy concept of "artistic worth") for "intellectual property" is that by providing SOME protection for ideas in various forms, you benefit the overall society. But since this is an ARTIFICIAL distinction, it is up to the proponents of intellectual property to show WHY a society should adopt such rules. And it is within the rights of a society to change or abolish those rules if it feels that they are doing more harm than good to the society as a whole - whether or not the people who are currently benefiting from those rules have somehow started thinking they are "rights" instead.